In 1997, the Supreme Court in D.K. Basu v. State of West Bengal laid down eleven requirements for arrest and detention procedure, the D.K. Basu guidelines, and held that their violation would attract liability and constitute contempt of court. The judgment was a landmark in the development of custodial rights jurisprudence under Article 21. It is also, nearly three decades later, an illustration of how little a Supreme Court direction can accomplish when it operates against the institutional culture and political economy of police practice.
India has no statute that specifically criminalises torture by public officials. The Indian Penal Code, now replaced by the Bharatiya Nyaya Sanhita, contains provisions for causing hurt, grievous hurt, wrongful confinement, and culpable homicide. These provisions, in theory, apply to police officers who torture or kill a person in custody. In practice, prosecution under these provisions requires a complaint, an investigation by the very agency likely to be implicated, and a prosecution sanction process that creates structural barriers. The result is a near-total impunity for custodial violence.
The National Crime Records Bureau reports custodial death figures annually, but the reported numbers are widely regarded as undercounts. Deaths attributed to illness, suicide, or attempted escape may mask deaths from violence. The NHRC receives complaints and issues notices, but its recommendations are not binding and its orders are not self-executing. State human rights commissions similarly lack coercive power. The monitoring architecture around custodial deaths is impressive in its density and inert in its effect.
The Law Commission of India's work on torture-related reform has produced recommendations for a Prevention of Torture Bill, most recently updating earlier draft legislation. The bill would define torture to include physical and mental suffering inflicted by public officials, create criminal liability, and establish mandatory investigation procedures. India also signed the UN Convention Against Torture in 1997 but has never ratified it, a diplomatic anomaly that reflects the political reluctance to create legally binding obligations in this area. Parliamentary passage of a dedicated law that criminalises torture by public officials, provides for independent investigation, and establishes mandatory compensation for survivors and families is the baseline reform that other improvements depend on.
The Article 21 jurisprudence has developed in parallel. The Court has expanded the right to life and personal liberty to encompass dignity in detention, the right to legal aid from the moment of arrest, the right to be produced before a magistrate within 24 hours, and compensation for unlawful detention. These are genuine achievements. But they address the legal framework rather than the institutional reality. A detainee who has been tortured must first survive, then navigate a complaint process that depends on the state, then wait for a judicial response that may come months or years later. The gap between the constitutional standard and the custodial experience is vast.
The Bharatiya Nagarik Suraksha Sanhita, 2023, the replacement for the Code of Criminal Procedure, made several changes to arrest and detention procedure. It introduced a requirement to inform a nominated person of the arrest, clarified the procedure for bail in cognisable offences, and retained the 24-hour production requirement. It did not, however, create any new mechanism for independent investigation of custodial deaths or any dedicated accountability framework for police violence. The comprehensive reform of criminal procedure that the new codes represent did not treat custodial rights as a priority area.
The political economy of anti-torture legislation is, if anything, more unfavourable than witness protection. Police forces are the most operationally critical agency of state governments. Politicians of all persuasions depend on police cooperation for both governance and electoral purposes. Legislation that creates genuine criminal liability for police officers, with independent investigation and prosecution, would be experienced by police institutions as a fundamental threat. That threat generates institutional resistance that is politically difficult to overcome. The result is reform that is rhetorically endorsed and structurally obstructed.
The case for a torture prevention statute is not only moral. It is also instrumental. Confessions obtained by torture are not only unreliable; they are inadmissible. Convictions built on them are legally vulnerable. The D.K. Basu guidelines, if enforced, would generate contemporaneous documentation, medical examination records, arrest memos, notification records, that would either prevent torture or create evidence of it. The statute, combined with independent investigation, would create accountability that currently does not exist. The argument that effective policing requires the ability to torture is not only false; it is self-defeating, because it produces evidence that fails in court.